On 27 February 2013 the High Court of Australia handed down its decision relating to the ability of local councils to pass specific types of by-laws and the potential for those by-laws to infringe implied rights of freedom of political communication under the Australian Constitution.

Whilst on first blush the decision in Attorney General (SA) v Corporation of the City of Adelaide would appear to have little to do with the rights of traders and retailers, the implications of the decision are such that local councils may pass laws regulating the conduct of the public, maintaining the peace on roads and in public areas generally and the use of permits in order to engage in certain activities.

This particular case involved members of a particular congregation, “Street Church”, who preached to the public in Rundle Mall, Adelaide. Council by-laws were in place regarding such activities and further that they required permission from the Council. The relevant by-laws required permission from Council to “preach, canvass, harangue, tout for business or conduct any survey or opinion poll” and further to “give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter”.

Several Rundle Mall traders and a retailers group expressed their concerns at the time about the noise being made by Street Church, that it was impacting on their businesses and in particular deterring customers . Indeed, further complicating the situation was that the Street Church attracted gatherings of people protesting and drowning out the messages of the Street Church .

The High Court was required to consider the meaning of phrases including “preach”, “canvass” and “harangue”. Whilst it was not necessary to go further in this particular case, it is evident that the by-laws also concerned with persons who “tout for business”. Similar by-laws are quite common around Australia.

The High Court had to consider whether such by-laws were “an unreasonable exercise” of the by-law making power and “not a reasonably proportionate or proportionate exercise of the power”. The High Court was consistent in determining that such by-laws are reasonable. That is, the High Court found that it is necessary for councils to be able to regulate activities on roads and in other public places to ensure good governance and for the convenience, comfort and safety of its inhabitants.

Chief Justice French said that the by-laws were “a rational mechanism for the regulation by proscription, absent permission, of conduct on roads which involves unsolicited communication to members of the public. They were not, on their face, capricious or oppressive. Nor did they represent a gratuitous interference with the rights of those affected by them. They provided a mechanism for protecting members of the public from gratuitous interference with their freedom to choose whether and, if so, when and where they would be the subject of proselytising communications. They were directed to modes and places of communication, rather than content” .

The next step that the High Court was required to take was to consider whether the by-laws impacted on the implied freedom of political communication under the Australian Constitution. The Court applied the following a two-fold test, namely:

  1. Whether the law, in its terms, operation or effect, effectively burdens freedom of communication about government or political matters; and if so
  2. Whether the law nevertheless reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government, and the procedure prescribed by section 128 of the Constitution for submitting a proposed amendment of the Constitution to the informed decision of the people.

Whilst the answer to the first proposition was yes, the answer to the second was no. The High Court found that the by-laws were “reasonably appropriate and adapted to serve the legitimate end of the by-law making power”. As such, councils are able to pass by-laws to regulate such behaviour, provided that they are reasonably appropriate and sufficiently provide for political communication to occur .

The broader ramifications for traders and retailers are evident. Given the abilities of councils to regulate such behaviour, councils may be able to restrict types of conduct in certain areas. It may be, for example, that a council does not issue permits in particular malls, streets or centres. This also invites traders and retailers and retail groups to open dialogue with councils about the kind of conduct to be permitted and where it should be permitted.

 Likewise, whilst not specifically in issue in this case, by-laws can regulate the manner in which traders and retailers “tout for business”. This can impact on traders directly, including on the use of spruikers and mascots.